Gloria Dumaran Jamero v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 485/2018

[2020] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 485 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 49-year-old national of the Philippines who last arrived in Hong Kong on 2 April 2012 when she was arrested by police for using another person’s passport, for which she was subsequently convicted and sentenced to prison for 8 months.  Upon her release from prison she was referred to the Immigration Department for repatriation when she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by the terrorist group New People’s Army (“NPA”) for leaving the group, and after her torture claim was rejected and dismissed, she then sought non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Surigao Del Sur, the Philippines.  While still at school she became a supporter of the political party Communist Party of the Philippines, and in 1986 joined its armed wing NPA and received medical training when she was subsequently assigned to work in its medical unit to provide medical support for her fellow members injured during military activities against the government.

3.In 1999 she met her husband in Manila whom she later married in 2001.  After giving birth to her twin daughters she decided to quit NPA to devote her time to raise her children, but as she had heard that any member trying to leave the party would be killed, and fearful of the same repercussion to her and her family, she therefore left the Philippines in 2001 for Taiwan where she worked as a domestic helper until 2006 when she returned to the Philippines.

4.In 2008 she departed for Hong Kong to work as a foreign domestic helper, but when her employment was terminated in 2009, she then moved to work in Macau, but later when she encountered some problem with her passport, she went back to the Philippines to obtain a false passport and returned to Macau in 2011.

5.In early 2012 when she took a trip from Macau to Mainland China, she lost her passport during the trip, and so she stole her friend’s passport and used it to try to enter Hong Kong but for which she was arrested and subsequently convicted and sentenced to prison for 8 months during which she was informed by a fellow inmate that the NPA people were still looking for her in her home country, and so upon her release from prison she raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form on 20 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 7 April 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but including risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the NPA people upon her return to the Philippines as low due to the absence of past ill-treatment from them, that there is no reliable evidence that the NPA people were going after her other than some hearsay information and her own speculation, that in any event after all these years it was doubtful that they would still have any adverse interest in her, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 102 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from her home district in large cities such as Manila where she had stayed without incidents and where it would be difficult if not impossible for those NPA people to locate her.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 13 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 16 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted that the Applicant may have been involved with the NPA in the past but found no reliable evidence that their people were looking for her since she left the Philippines in 2001, and that it doubted that after all these years that they would still have any adverse interest in her or that they would still be willing to expand any efforts to look for her that it did not accept that she would face any risk of harm from them upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

10.On 26 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  irrationality in failing to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry;

(3)  failure to provide adequate reasons as to decision made;

(4)  procedural impropriety/unfairness in failing to investigate into the country of origin information of the Philippines;

(5)  irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failing to consider a consistent system of human rights violations;

(7)  irrationality in failing to consider if state protection exists in the Philippines;

(8)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(10)  procedural impropriety in applying the incorrect standard of proof;

(11)  no reasonable basis for rejecting his claim credibility;

(12)  failure to consider the extended form of state acquiescence;

(13)  failure to fully consider the COI reports in assessing risk to the Applicant;

(14)  irregularity of the decision-maker being a different person than the interviewing officer; and

(15)  no proper basis for consideration of internal relocation. 

11.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was extended state acquiescence to her claim, or how did the adjudicator fail to make proper inquiry or to apply the correct standard of proof, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and I fail to see any rationale for insisting that the same interviewing immigration officer be involved in her appeal process to the Board when the mechanism for her appeal which is a rehearing of her claim to be before a different person is actually a safeguard for fairness that I do not see how she could be so prejudiced or adversely affected by her appeal being heard by the adjudicator for the Board.  As such and in the premises I do not find any of these grounds or complaints of the Applicant reasonably arguable for her intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his or her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding that she had any genuine fear of risk of harm from the NPA people for the thorough and detailed analysis and reasoning set out in paragraphs 28 – 61 of its decision with the benefit of hearing her oral evidence and answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.     

14.Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 23^rd day of July 2020. 

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1